THE WEST RIVER BRIDGE COMPANY, ❘ books and accounts of the company; and if it

should appear that the net proceeds should have averaged a larger sum than twelve per cent. per annum, the judges should lessen the

and Dummerston, in the County of Wind- tolls, provided they did not reduce them so

the public good, and that if said alterations are worked, they would form but little improvements, and that the public will never be satisfied until said highway is laid on the best possible route; and further, that it will cost as much to make said alterations (which we con sider to be useless), as it will to make a good traveling road on the route contemplated by the petition.

"And your petitioners further represent, that the toll bridge across West River, on said route in Brattleboro', owned by the West River Bridge Corporation, is, and for a long time has been, a sore grievance, both to the traveler and the inhabitants of the towns in the vicinity, who have occasion to pass and repass, travel and labor, on said highway; and however the Legislature in the infancy of the State may have exercised sound discretion in granting said toll bridge, yet, in the present improved and thriving condition of the inhabitants, your petitioners are unable to discover any good reason why said grievance should longer be endured, or why the wealthy town of Brattleboro' should not, as well as other towns much less able, sustain a free bridge across West River. Your petitioners therefore pray the court, by an able, judicious, and disinter

to the West River Bridge Company, dated on
the first day of April, in the year seventeen
hundred and ninety-nine, and recorded in
Brattleboro' records of deeds, liber D, page 203,
containing two acres of land, be the same
more or less, with a covered bridge, gate, toll
house, barn, and other buildings thereon.

"Thomas F. Hammond,
"Julius Converse,
"Isaac N. Cushman,

"Commissioners."

To this report, the West River Bridge Company, the town of Brattleboro', the town of Dummerston, and the persons who were entitled to damages for the loss of land, etc. all filed objections.

The town of Brattleboro' filed five objections, the last of which was as follows:

"5. Because it does not appear from said report, and is not true in fact, that there was, or that said commissioners considered that there was, any occasion for any new highway on said route within a great distance, to wit, within two miles of said id bridge. bridge."

The town of Dummerston filed ten objections, the first four of which are as follows:

"1. Because said commissioners proceeded in said report to discontinue the Indited Road,

ested committee, to cause said route to be sur-so called; a road of which the petition of

veyed, and such alterations and improvements to be made in the old road, or a new one to be laid, as the public good may require; and also to take the real estate, easement, or franchise of the 'West River Bridge Company,' a corporation owning the aforesaid toll bridge, for the purpose of making a free road and bridge across said river, agreeable to the statute in such case made and provided; and as in duty bound will ever pray."

In conformity with the above prayer, the court. appointed three persons to examine the premises and make report.

Joseph Dix and others did not ask the discontinuance; *a road which said town was [*511 then liable to make, and has since raised money to make.

"2. Because the acceptance of said report would render the maintenance of two roads necessary through a large part of the town, while the natural difficulties are so great, that, with only one, the burdens of said town, when compared with its means, are unusually onerous.

Nurse

"3. That said surveyed route, or Swamp route, so called, is a longer, more wet, and more expensive route, between the termini in question.

"4. That said commissioners were partial,

influence of misrepresentations made by inter

In May, 1843, the commissioners reported that they had examined the premises, and were unanimously of opinion that a new road ought | prejudiced, and mistaken; and acted under the to be laid out over a considerable portion of the distance between the termini mentioned in ❘ested persons." 510*] the petition, *which road, they said, they had caused to be surveyed and laid out. The report then proceeded as follows:

"The said commissioners also examined the toll bridge across West River in Brattleboro', and have taken into consideration the propriety of laying a free road across said bridge, at the expense of said town of Brattleboro', as contemplated by said petition; and in this the said commissioners were unanimously of the opinion that public good required that the real estate, easement, or franchise of the West River Bridge Corporation should be taken, and compensation made therefor, that said toll bridge might thereafter become a free bridge. The said commissioners have therefore assessed to the said West River Bridge Corporation the sum of four thousand dollars, to be paid to the said West River Bridge Corporation out of the treasury of said town of Brattleboro', in full compensation for all real estate, easement or franchise belonging to said corporation, which real estate, easement, or franchise is situate in said town of Brattleboro', near the mouth of West River, and is supposed to be more par- | ticularly described in a deed from Josiah Ames

The persons to whom damages were awarded by the report were fifteen in number. Eleven of these filed six objections, the first of which was as follows:

"1. Because the said commissioners were partial, prejudiced and mistaken, and acted under the misrepresentations made by interested persons."

The West River Bridge Company filed seven objections, the sixth of which stated the charter, their observance of it, and their desire for its continuance.

In November, 1843, the case was tried, and the report of the commissioners was accepted. The two towns were ordered to pay the damages awarded to the persons through whose lands the road was laid out, and "the town of Brattleboro', to pay to the West River Bridge Company the sum of damages, as assessed by said commissioners, by the 31st day of May, 1844; and that said bridge be opened for the free public travel by the 1st day of June, 1844."

In February, 1844, a writ of certiorari was sued out from the Supreme Court, whereby the whole proceedings of the County Court were brought up for review. Upon the argument, the West River Bridge Company, in addition | the reporter thinks it the safer course to reto the exceptions which they had presented to the court below, filed the two following:

Bridge Company, on the ground of its being By the general law of Vermont relating to In 1842, a petition was presented to the | tution, treaties, or laws of the United States,

and the decision is in favor of such their validity, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error." The plaintiff insists that this power and authority exercised under the State of Vermont, and the statute of that State, passed in 1839, under which the power was exercised in the manner it was done, are repugnant to the Constitution of the UnitStates.

County Court of the County of Windham, Ver-
ment, praying for a resurvey and improve-
ments in the highway, beginning in the village
of Brattleboro', and leading north across this
bridge, and thence north to and through the
town of Dummerston; and in relation to this
bridge, it is represented in the petition as a
great "grievance, and should no longer be en-
dured;" and praying that said road be resur-
veyed, and the real estate, easement, or fran-ed
chise of the "West River Bridge Company"
should be taken for the purpose of making a
free road and bridge across said river. On that
petition the court appointed commissioners,
who proceeded to examine the road and decide
in the premises.

They surveyed and laid out a road in this manner (as appears, Record, p. 17), beginning at Brattleboro' village, about one mile south of this bridge, and following the existing highway to and across the bridge, and thence north of the bridge two miles, without making any alteration whatever. Record, p. 32, and Report, p. 17. They then report changes in the highway, all but fifty rods of which is in Dummerston; and, as to this bridge, the commissioners report as follows:

"The said commissioners also examined the toll bridge across West River, in Brattleboro', and have taken into consideration the propriety of laying a free road across said bridge, at the expense of the town of Brattleboro', as contemplated by said petition; and in this the said commissioners were unanimously of opinion that the public good required that the real estate, easement, or franchise of the West River Bridge Company should be taken, and com

This court is never called on to decide a State law unconstitutional in the abstract. It must have a case before it, and the question is: Is it constitutional as construed and applied in the case by the State court? If it were not so, the State courts have but to take a State law, good on its face, and construe it to cover cases, however grossly unconstitutional, and there would be no redress, as it might be said, The law is good, but the decision is bad, but that is not within the jurisdiction of this court. The only way is to treat the State statute as the State court has treated and applied it in the case, and then to consider whether, for such a purpose, it is constitutional. Such has been the course in this court. A law may be constitutional for some purposes, and not for others. Golden v. Prince, 3 Wash. C. C. R. 313. The statute of Maryland, levying a tax on any bank put in operation in that State without consent of its Legislature, was not decided as unconstitutional in the abstract. It was undoubtedly good as to private banks, or those of other States; but when it was applied by the State courts to a branch of the United States Bank, then this court decided that, for that purpose, it was bad, being unconstitutional.

pensation made therefor, that said toll bridge | McCulloch v. Maryland, 4 Wheaton, 235. The

might be made a free bridge. The commissioners have therefore assessed to the said West River Bridge Corporation the sum of four thousand dollars, to be paid to the said West River Bridge Corporation out of the treasury of said town of Brattleboro', in full compensation for all real estate, casement, or franchise belonging to said corporation, which real estate, easement, or franchise is situate in said town of

statute of New York, granting the exclusive navigation of its *waters by steam ves- [*516 sels, was, by this court, holden as unconstitutional, as applied to vessels coming from without the State. Gibbons v. Ogden, 9 Wheaton, 209. Indeed, the words of the United States statute are carefully adapted to such an object. It provides, not merely that this court is to pass on the constitutionality of the State

Brattleboro', near the mouth of West River." | law, but on any authority exercised under any

Record, pp. 15, 16, and Ames's deed, p. 32.

This report was returned into court, and 515*] though exceptions *and objections were thereto made on the part of the present

State. If, then, it appears that, in this case, the plaintiff's rights have been invaded by any authority under the State, or by any law of the State repugnant to the Constitution of the must be reversed.

plaintiffs, as well as by said town of Brattle- | United States, the decision of the State court

boro', yet the court, on the hearing, decided to accept and approve said report, and established the whole of said road, and ordered that Brattleboro' pay the present plaintiff the said sum of four thousand dollars, and "that said bridge be opened for the free public travel." Record, pp. 25, 26.

This decision and these proceedings were carried before the Supreme Court of the State by certiorari, and by that court affirmed; whereupon the plaintiff brings this writ of error.

By the twenty-fifth section of the Judiciary Act of the United States, it is provided, "That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision of the suit could be had, where is drawn in question the validity of a statute of, or authority exercised under, any State, on the ground of their being repugnant to the Consti538

I. It is insisted by the defendant that this is a pretended exercise of the power of the eminent domain, as an incident of sovereignty-the taking of private property for public use; when, in truth and reality, it is but an action impairing and destroying the force and obligation of a contract, contrary to the provisions of the United States Constitution.

This is attempted to be effected under the disguise of calling this grant and franchise property. It is no such property as falls with in, or can be the subject matter of, the eminent domain. The original idea of the eminent domain was the right of sovereignty, or residuum of power over the land which remained in the sovereign or lord paramount after the fee granted to the feudatory, and was therefore confined to the realty. In the progress of arts Howard 6. and commerce, when personal property became | power of sovereignty. It is said, the citizen is

worthy of legal consideration, this power of sovereignty was extended over that, and even included debts. But this grant to the plaintiffs can fall within no such category of property. It is a franchise, a pure franchise. It included the grant of no property, real or personal. It lay in grant, and not in livery. It was created by, and had its existence in, the grant in the contract; and it could cease only by impairing and destroying that contract. If a private debt or contract, as a chose in action, could be taken under the power of eminent domain, yet still the debt is kept on foot and in force. But this is an attempt, not to take and keep in force this

safe, because, under the exercise of the eminent domain, he is to receive compensation for whatever is taken. That furnishes no security, for the mode and amount of compensation is fixed ex-parte by the government and its agents; and, besides that, the prohibition of the Constitution is general, and contains no exceptions for this exercise of this power of eminent domain as to contracts.

If the provision of the Constitution which forbids the impairing of contracts, does not extend to the contracts of the State governments, and they are left subject to be destroyed by the eminent domain, then there is an end of public

contract, but actually to extinguish and destroy | faith. It is said, by every writer, and by al

it. Even if it were true, as has been holden, that property which the corporation create or acquire, and the taking of which would not destroy the grant, might be taken in the proper exercise of this power of eminent domain, yet the grant itself, the franchise, is no property. A franchise is defined to be "a royal privilege or branch of the king's prerogative, subsisting in the hand of a subject."

most every court which has *passed on [*518 this subject, the eminent domain, that it must rest with "the legislative power to determine when public uses require the assumption of private property," and to regulate the mode of compensation. 2 Kent's Com. 340. If to this it be holden that this extends even to contracts of the government itself, then it follows, that the State of Mississippi, or any other State in

The State alone possessed the power to erect | debted, has but by law to declare that the

and sustain toll bridges across large streams in the public highway. This prerogative was duly granted to the plaintiffs as to a certain 517*] *stream; and in the plaintiff's hands, within the limitations of the grant, it could not be overthrown by the exercise of another branch of the sovereignty of only equal and no greater force. It is true, that the shares in a corporation are property, but the franchise is not. It cannot be taken to respond to any liabilities of the corporation, and can only be

public good requires that the State debts, bonds, etc., shall be taken for the public use, and appoint commissioners to fix their present market value to the holders, and, on payment thereof, declare them extinguished. Such is the real character of this transaction.

III. The power or authority exercised under the State in this case was this: under the pretense of laying a new highway, where none was required, and none, in fact, laid, they have taken a franchise, and abolished the tolls of a

extinguished by forfeiture. It is entirely un-chartered bridge. By the statute of 1839,

like a grant of land, to which the State court compare it, in this this is a grant of royal prerogative, or branch of sovereignty; whereas, when land is granted, all the powers of sovereignty, to enforce the laws, levy taxes, and in all other respects, remain still in the State over the granted territory.

II. All the powers of the States, as sovereign States, must always be subject to the limitation expressed in the United States Constitution, nor can they any more be permitted to overstep | such limitations of power by the exercise of one branch of sovereignty than another. What is forbidden to them, and which they cannot do directly, they should not be permitted to do by color, pretense, or oblique indirection. Among other matters limiting and restricting State sovereignty is this: No State shall pass "any law impairing the obligation of contracts." The power of eminent domain, like every other sovereign power in the State, is subject to this limitation and prohibition. Laws creating corporations, with powers for the benefit of the individual corporators, even though for public purposes, like turnpikes, railroads, toll bridges, etc., have always, and by almost every court in the Union, and by this court, been decided to be contracts between the government and the corporators. The plaintiffs' grant and franchise was a contract of the State for one hundred years, and by this Act of 1839, and the proceeding under it, that contract is not only impaired, but utterly destroyed; and this a State can no more do under the power of eminent domain, than under the law making power, or any other

under which this proceeding is attempted to be justified, it is provided, "whenever there shall be occasion for any new highway," etc., etc. In this case, it appears that there had been there a highway from 1796, and this bridge was built in that highway, and this public stage road was followed by the commissioners who made this survey for more than a mile south of this bridge, across it, and two miles north of it, without variation; and this was approved by the court; thus conclusively deciding that no new highway was required there. All that was mere pretense and fiction, and shown by the record to be false. Let us now reduce to undisguised English that statute of the State, as it was construed and enforced by the authority exercised under the State in this Whenever any toll bridge heretofore granted becomes of any value to the proprietors, and thereby obnoxious to the inhabitants of the vicinity, they may present a petition to their County Court, and therein falsely pretend that a new highway is there needed, and the court shall appoint commissioners of their own selecting, who may pretend to lay out a new highway, but really only follow the old one across the bridge, and appraise the damage to the proprietors of the bridge; and the court may thereupon declare and adjudge, that all tolls at said bridge cease on said sum being paid, though the time of the grant has not expired, and though the sum does not equal half the value of the franchise. This would be, in substance, enacting, that, "hercafter no tolls shall be paid for passing West River Bridge,